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Saturday, April 16, 2011

In the last two weeks the government has received two important letters relating to the issue of standards of the International Crimes Tribunal.

The most significant of the two letters is the one dated 21 March 2011 that was sent by Stephen Rapp, US Ambassador at large for War Crimes. It was addressed to both the Law minister and the Foreign Minister and was hand delivered to both of them by Nicholas Dean, the US embassy’s deputy chief of mission, and Robert Gerardi, an official of the US department of justice on Tuesday 12 April.

Rapp visited Bangladesh on the invitation of the Bangladesh government in January 2011 and this letter is a response to that visit. See this page for material on the January visit.

Clearly a lot of work has gone into putting together this letter, which focuses on changes to the Tribunal Rules of Procedure, which can be changed by the Tribunal itself and therefore can be done without the government's involvement.

The second letter, less significant than Rapp's but still important, is one sent by the International Centre for Transitional Justice, dated 15 March 2011. In the context of concerns about the the law governing the Tribunal, it offers its assistance to the government.

Prior to this, in February 2010, the UK All Party Human Rights Group sent a copy of legal advice on the adequacy of the International Crimes (Tribunal) Act 1973 (as amended, ICT Rules of Procedure had not been drafted at this point) that it had obtained from the the War Crimes Group of the International Bar Association to the government. This can be downloaded here

And in July 2009, Human Rights Watch had sent a letter to the prime minister on the subject of necessary changes to the 1973 International Crimes (Tribunal) Act. See here

This hearing relates to applications filed by the prosecutor seeking the remand of Motiur Rahman Nizami and Ali Ahsan Mohammad Mujahid into the custody of the investigation agency for three days so that they could be questioned.

This application was dealt with briefly at the end of the hearing on 27 March (see blog) and adjourned till the 5 April.

Mr Sayed Rezaur Rahman moved the petition regarding Matiur Rahman Nizami and Zead Al Malum moved the application for Mujahid. They both argued that these two men have committed serious crimes and that the prosecution had different kinds of evidence against them to show that they were members of the Al Badr, and Razakers. They both said that the evidence includes all the evidence set out in section 19(1) of the 1973 Act, namely, 'reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings.'

They said that they were seeking 3 days of remand under Rule 16(1) of the Rules of Procedure which states: The Investigation Officer if thinks it necessary, may apply through the Prosecutor to the Tribunal to commit the arrested person(s) in his custody for the purpose of interrogation and the Tribunal can pass order for such custody of the person(s) arrested, for a maximum period of three (3) days if it upon
consideration of facts and circumstances of the case is of opinion that for proper
investigation such order is indispensable.'

When asked by the Tribunal why the interrogation should not take place in the jail, or at the jail gate, Malum said that it was not possible to interrogate them at the jail gate because they needed to show videos, documents etc. 'It will take time,' he said.

He said the government had allocated the house - No 405 (old) and 20/A (new) - in Dhanmondi Road 27 as a 'safe house' for the interrogations to take place and this have been gazetted.

He also pointed to section 8(4) of the 1973 Act which states that, 'Any Investigation Officer making an investigation under this Act may examine orally any person who appears to be acquainted with the facts and circumstances of the case.' (Please note that the some of the detail of the prosecution case for interrogation is missing here. It will be subsequently added.)

Tajul Islam, responded on behalf of Nizami by stating that 'the application for committing Nizami to the custody of the investigating agency for the purpose of interrogation has been filed in violation of Rule 16(1)'

Rule 16(1) states that ‘The Investigation Officer if he thinks it necessary, may apply through the Prosecutor to the Tribunal to commit the arrested person(s) in his custody for the purpose of interrogation and the Tribunal can pass order for such custody of the person(s) arrested, for a maximum period of three (3) days if it upon consideration of facts and circumstances of the case is of opinion that for proper investigation such order is indispensable.’

Islam went onto say that under rule 16(1) of rules of procedure, the ‘Investigation Officer is required to form an opinion as to the necessity of interrogating the Accused … This opinion is required to be formed objectively on the basis of documents and evidence. … There must be material or evidence before the Investigating officer to form an opinion as to the requirement of the interrogation. However, no documents, materials or evidence were identified or specified in the application on the basis of which the Investigating Officer has sought custody.’

Islam added that, the prosecution 'has merely made general allegations in the application which are not supported by any materials or evidence. The application does not refer to any document, material, evidence or witness which has necessitated the interrogation … As such, the application under Rule 16(1) of the Rules is without any factual or legal basis.’

The defence lawyer argued that, the Tribunal is required to be ‘satisfied that for the purpose of proper investigation, interrogation of the accused is necessary and further that such interrogation is necessary in the custody of the Investigating Officer. However in the facts and circumstances of the case there are no materials or records on the basis of which the Tribunal may be so satisfied.’

The lawyer said that the ‘Application does not disclose any materials that indicate that the interrogation of the Accused is necessary for proper investigation. … There is no reference to any documents or witness in such general allegations. It is clear that the said application is merely a fishing expedition. Hence, the Tribunal does not have any evidence or material before it for the purpose of concluding that the interrogation of the Accused No.1 is indispensable. ‘

He also stated that ‘The Application also does not disclose as to why interrogation of the accused is necessary in the custody of the Investigating Officer. The Accused may be interrogated in the custody of the jail authority - either within his cell or at the jail gate. There is no statement or explanation as to why interrogation of the accused in his cell or at the jail gate will not be equally efficacious and appropriate.

He also said that the power set out section 8(4) of the 1973 Act related to witnesses not accused.

He said that the prosecution can put everything on a laptop, like films etc, and bring it to the jail where interrogation could take place

He asked the Tribunal, 'Where is the formal opinion of the Investigation Officer? There is no report.'

The prosecution, he said, just want to take him into custody for their 'sweet wish'

Islam said that it was a recognised principle that the defendent's lawyer 'should be present during interrogation'

Advocate Munshi Kabir then got up and responded on behalf of Mojahid, making the same basic points as Islam. 'In the whole of the application filed with the lordship, you will not find any specific documents justifying need for interrogation. At least your lordships need to see documentation from the investigation agency'

'No evidence has been shown that establishes a fact of the case' he said. 'No statement that is admissible in court. No data or facts have been shown'

He told the Tribunal, that 'If you think that interrogation is indispensable then you should pass an order.'

The Tribunal chair read out the following ruling:

"Two applications have been filed by the prosecutor praying for allowing a prayer made under Rule 16(1) of the International Crimes Tribunal Rules of Procedure 2010. These two petitions relate to accused Matiur Rahmen Nizami and Ali Ahsan Mohammad Muzhaid who are now in custody in connection with a case under section 3(2) of the International Crimes Tribunal Act 1973, and pray for taking into the custody of the Investigation Agency for interrogation. As both the petitions relate to the same relief, those are taken up together for hearing and disposal.

We have heard both the prosecutors and both the counsels for the defence. It is submitted by the learned prosecutors that for proper investigation of this case two accused should be committed to the custody of the investigation agency for the purpose of interrogation and for that matter the government has by gazette notification declared a specific house situated at Dhanmondi as a safe house. He further submitted that the material which have been collected by the prosecution are required to be examined by interrogating the said two accused persons. He further submitted that some reports, photographs, newspapers, periodicals, magazines, films, and tape recordings have been collected by investigation which will connect two accused persons with the offences in question and for testing them, they are required to be interrogated for making an effective investigation. He further submitted that the investigation is at the fag end stage and if this prayer is not allowed then the Investigation Authority will be prejudiced and as a result the whole investigation will be defective and incomplete. As such they prayed for committing the accused persons to the custody of the Investigation Agency for proper investigation.

On the other hand, Mr Tazul Islam and Mr Munshi Ahsan Kabir, the learned counsel for the accused person submitted that those accused person are in custody by the order of the Tribunal from early August, last year and 8 months have already been elapsed and at the fag end of the investigation it is not all all necessary for the investigator to take the accused persons in their custody for interrogation. It is further contended by the learned counsel that if this prayer is allowed then the accused person will be highly prejudiced as they may be ill-treated by interrogator. Moreover it is submitted by the learned counsels that the alleged safe house at Dhanmondi is not safe place for the accused on the point of security and as such the prayer for taking custody of the accused person in the hands of investigators should not be allowed.

We have heard both the sides and given our anxious thought regarding the matter. We are of the view that the ends of justice will be met if the prayers of the prosecution are allowed with some modification mentioned herein. The petitions are allowed and the accused persons be committed to the custody of the Investigation Agency inside the Dhaka Central Jail for a period of one day only that is from 10 am to 5 pm for each accused person. The Superintendent of Dhaka Central Jail is directed to arrange a special room for interrogation within the knowledge of the engaged counsel for each accused person who is permitted to be present at the adjacent room where the interrogation will be held. The learned counsel will not be allowed to hear the interrogation but must be allowed to see the accused person at the interval time of such interrogation. Two separate dates must be found and fixed for interrogating the two accused persons separately. The investigation Agency will inform the Supt of Dhaka Central Jail and the counsel of the accused persons before about the date and time of each interrogation.

The petitions are allowed with modification mentioned above.

Let copy of the order be sent to the Supt of Dhaka Central Jail for information and necessary action. Copy thereof also be sent to the investigation agency and the defence counsel.

Comment
1. The Tribunal's decision that the interrogation should take place whilst remanded in the custody of the investigation agency inside, rather than outside, this is a positive order, which along with the decision to allow Alim bail (See blog) suggests that the Tribunal may finally willingly to act in a more independent manner than previously.

Interestingly, not mentioned in the proceedings (though it was in subsequent hearings) was a 2003 High Court order than had, in relation to the ordinary criminal justice system required the magistrates to order interrogations to take place inside jail.

This order has effectively been ignored by the courts - and by the police who constantly seek people to be interrogated in their custody. The High Court order also had directed the Jail authorities to build proper facilities for jail interrogations - which has again been ignored.

So this order reflected what the High Court had ordered 8 years ago.

The question of where the interrogation takes place is significant in Bangladesh, as the police routinely torture detainees when they are remanded in their custody (the High Court specifically mentioned this as one of its rationales for the ruling). In the context of this Tribunal - as torture was unlikely to occur (though, of course, who knows) - a decision not to allow the accused to be remanded in police custody is probably more of symbolic than real significance. However, the decision shows signs that the Tribunal will not simply proceed agreeing to the prosecution applications (which it has in the past).

[NB: Unfortunately, this order was subsequently revised by the courts to allow interrogations to take place outside jail, see blog)

2. However, it again needs to be noted that there was a serious failure in the way in which the Tribunal set out its decision making in its order.

The order for interrogation was given under section 16(1) and a plain reading of this does require that the Tribunal, at the very least consider that placing the accused in the remand of the investigation officer is 'indispensable' (nb: the accused are remanded with the investigation officer for the period when interrogation takes place, though it is inside the jail).

In its application, the defence argued that there was no evidence given to the Tribunal to allow it to make a judgment as to whether remand was indispensable or not. It also argued a number of other points regarding what was required by section 16. In its ruling, the Tribunal simply does not refer to any of these arguments at all. It does not even say that in its view interrogation is 'indispensable', yet alone the reasons for considering it to be so.

The Tribunal must start engaging with the defence's detailed arguments and not simply ignoring them. Of course the Tribunal may feel that it can ignore them as none of these orders can in any case be challenged - see Section 21 of the 1973 Act. The poor reasoning given in the order is of course a very good reason why interlocutory appeals should be introduced.

This is the third day of hearings relating to the arrest/detention/bail of Abdul Alim. There was previously a hearing on 27 March, and 28 March.

It started of with the Tribunal reprimanding the Chief Prosecutor for allowing Alim to be sent to Gazipur jail, two hours away from Dhaka, rather than Dhaka Central Jail which is what the Tribunal order had stated.

Tajul Islam for the defence got up said that he had filed a supplementary application.

He then said that the supplementary application proposes certain conditions that the tribunal could impose for granting bail. These are:

1. The petitioner surrenders his passport before the competent authority;
2. He does not apply for any travel documents without the prior permission from the Tribunal;
3. He resides at the residence of his elder son Mr. Faysal Alim at flat No.3/ A and 3/ D, House No. 81, Road No. 03, Block-F, Banani Residential Area, Dhaka-1213;
4. He reports to a local police station on an regular basis;
5. He does not travel to any areas where he is alleged to have committed crimes, specially to Joypurhat, without prior permission from the Tribunal;
6. He does not contact any of the prosecution witnesses;
7. He does not interfere with any part of the investigation process.

He then went onto say that 'the proposed house to be resided in by the petitioner is owned by the elder son of the petitioner namely Md. Faysal Alim. ...That the house is an apartment building which is easily accessible to the investigators if necessary for quizzing the petitioner in connection with this case. .. That it is stated that the house is situated in a very known place which is very much accessible and observable for the investigators or for the law enforcing agencies, if required.'

He said that Mr. Faysal Alim, the son of the petitioner is a well known businessman and is the Secretary General of Bangladesh Mobile Phone Importers Association and a member of the Dhaka Chamber of Commerce and Industries and is willing to provide surety of an agreed amount as a condition for bail.

He went on to say, 'That the physical conditions of the accused petitioner has deteriorated after his arrest and his left leg has become completely crippled and he needs to take physiotherapy regularly for his arthritis problem, and his left ear is completely non-functioning and considering all the above conditions this Tribunal may grant bail to the petitioner on humanitarian grounds and for ends of justice.'

He concluded reading out from the supplementary petition by stating 'that the petitioner is an old, sick and physically inactive man and he has been living an isolated life in his own residence for the last couple of years and he has not been taking part in any social or political activities and he is totally inactive in politics and in such situation it is not possible for him to influence the witnesses or process of investigation politically.'

Islam then spoke in response to the prosecutor's written response to the bail application.

He quoted the prosecutor's submission as saying that there there was no provision for bail in war crimes cases. Islam then refered to Rule 2(3) of this tribunal's Rules of Procedure where he said that there was a definition for bail which states that, 'Bail refers to setting an accused at large on furnishing bond before the Tribunal.' He argued that, as a result of this definition, there was a clear provision of bail.

He then referred to Rule 65 of the Rules of Procedure and Evidence relating to the International Crimes Tribunal for Yugoslavia concerned with 'Provisional Release'. This states that

(a) Once detained, an accused may not be released except upon an order of a Chamber.
(b) Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.
(b) The Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.
(d) Any decision rendered under this Rule by a Trial Chamber shall be subject to appeal. ...'

He again also referred to Article 58 of the Rome Statute (see previous blog) and again stated that all the conditions had been met.

He said that bail was allowed both in the ICT's own rules and in rules of other courts.

He also said that it was 'impossible' for the accused to find a stand alone house, as was proposed by the prosecutor in his written submission. That in the building where it was proposed for the accused to stay, there were 20 flats, of which 8 were owned by sons of the accused.

Ialam was asked whether he was seeking bail on the merits of the case or just on humanitarian grounds and he responded, 'not on the merits of the case.'

Haider Ali for the prosecution then stood up. His application in response to Islam's petition for bail and supplementary application made the following points:
In his application:
- denied that Alim was ‘using a wheelchair because of his illness’
- claimed that the procesuction have provide information necessary to allow an arrest warrant under Rule 9 of the Rules of Procedure to be used.
- said that it is ‘false, fabricated and baseless’ for the defence to allege that there was no evidence to suggest that witnesses were being threatened.
- said hat it is ‘entirely false’ for the defence to claim that the allegations made against Alim are vague, or that Alim saved thousands of lives
- said that the ailments that the defence say that Alim is suffering from ‘are not compatible with his medical certificate’
- stated that it is ‘wholly false’ to say that Alim cannot move without a wheelchair, and not correct that he cannot interfere with witnesses as he cannot leave his home
- claims that that the defence argument that bail is a right nor a privilege, and that the prosecution had failed to establish ‘substantial reasons’ for detention, is not ‘relevant with the existing law’
- stated that the allegations against the accused are so serious that Alim should not be entitled to bail, even with conditions.
- argued that the ‘International Crimes (Tribunals) Act 1973 (as amended in 2009) is compatible with the [law relating to] International Criminal Tribunal on Yungoslavia and the International Crimes Tribunal on Rwanda as well as other international laws. And there is no provision to enlarge a person accused of crimes against humanity which is proved and hence the application for bail is not maintainable
- said that the proposed conditions for bail set out by the defence ‘are not applicable for this bail petitioner
- claimed that the building where it is proposed by the defence that Alim stays is five stories and consists of twenty flats where several families live, that the building is not owned by the sone of the bial petitioner solely and that it why it is risky to enlarge the accused on bail’

He argued that the accused was fit to go to jail and would receive all appropriate treatment.

He argued that Article 58 of the Rome Statute needed to be read with Article 60(2). This states that: 'A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.'

Ali said that this meant that if the Tribunal was satisfied that 'There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court' - the words stated in 58, para 1 - he had to be detained.

He said that the interpretation was 'crystal clear'.

He said that the accused was directly involved in serious offences committed in 1971. 'He has directly participated in them'.

That although all the allegations relate to Alim's home district, 'he committed offences throughout Bangladesh' and was therefore not necessarily safe to stay in Dhaka.

That he has previously come to Dhaka in March 2010 without any problems to his health.

That the medical team that examined him said that he was 'stable at present'

Tajul Islam, for the defence, then made some additional comments. He criticised the way in which medical examinations are done in Bangladesh. He disagreed with the prosecutions interpretation of Article 58 of the Rome statute.

He said that the Tribunal has 'inherent power to give bail.'

The prosecutor Ali then responded and said that 'illness is part of life, medicine is available in the prison.'

There was then a gap of about two minutes when the Tribunal members had short conversations with each other and then the Tribunal chair gave the following order:

'The accused MD Abdul Alim, has been produced in the Tribunal today and is present in the dock. The application for bail which was filed earlier for the accused person, was taken up for hearing. Mr Tajul Islam, learned counsel, appearing for the accused, submitted a supplementary petition to the application for bail, which was received. AM Haider Ali, also submitted a written submission agsinst the prayer for bail of the accused, which has also been kept on record.

Mr Tajul Islam submitted before the Tribunal that the accused person was a minister and also a member of parliament. He is above the age of 80. He has many different diseases and also cannot walk freely, and can only move with the help of a wheelchair.

He submitted that at moment he did not want to seek bail on the merits of the case, but only in consideration of illness, and on humanitarian grounds. In support of the submission, he submitted medical documents showing that he had an operation on his prostate gland, other illnesses and that he has prescriptions.

After the arrest of the accused person, when the police sent him to Tribunal he was examined by a board of doctors and a certificate was provided. On persual of the certificate we find that he has diabetes, hypertension, arthritis and also had difficulties in walking. It is stated this his condition was stable at present and needs to continue his medicine. We have also seen the accused in the Tribunal.

Syed Haider Ali has submitted that there is no disagreement that the accused has some diseases but that medical treatment was available in jail and that he has already obtained treatment and medication in Jail.

It was further submitted that considering the gravity of the the offences and that treatment was available in jail, the accused should not be given bail.

We have heard the learned counsel. Upon perusing the medical records we find that the accused person is an old man aged more than 80 years old, and also in the police report it is stated that he is 80 years old.

Also ... he can only move freely with the help of a wheelchair. He was brought to the tribunal by a wheelchair carried by the police.

Mr Tajul Ialam further submitted that in the case of bail, he is happy to follow conditions given by Tribunal. He also made some offers about condition in his application.

In consideration of the age of the petitioner, his sickness, difficulty in moving freely, bail should be given under certain conditions.

1. The accused petitioner must submit his passport before the registrar of the Tribunal to be kept on record.
2. The accuser petitioner is to stay in the address given in the bail petition, that is 2/C and 2/D, house no 81, Road 3, Block F , Benani Dhaka, home of his sons and he must not leave or change address without prior approval of the tribunal.
3. He must not make any statement for print or electronic media or make any contact with a witness, victims, political personalities or any political party.
4. He must cooperate with the investigation body as and when required.
5. He must not make any contacts with any victim or witnesses directly or by telephone or by any other means.
6. If he has a cellphone, he must give the cell number to this Tribunal.
7. He must not abuse privilege of bail by whatever means.
8. He must be present in Tribunal on date fixed.

If any of these conditions are violated or not following by the accused person, the bail granted shall stand cancelled and he will be taken into custody.

Issue this order accordingly. He is granted bail on the conditions and with two sureties of 1 Lakh, one from his son and another from [unclear name]. Failure to give surety he will be kept in detention.

On the evening of 27 March, following the warrant of arrest, issued by the Tribunal earlier in the day, (see blog), Abdul Alim was arrested from his house in Joypurhat and brought to Dhaka.

On the 28 March, Alim was brought before the Tribunal (Rule 34(1) of the ICT Rules of Procedure state that the 'police shall produce the arrested accused direct before the Tribunal within 24 (twenty-four) hours of arrest excluding the time needed for the journey'.)

There was a morning and an afternoon session

Morning session
Supported by a policemen either side of him, Alim was 'carried' up the stairs to the court which is situated on the first floor and put into the dock, where he was allowed to sit. His lawyers then came to talk to him.

Advocate Zead Al Malum appeared for the prosecution and gave the Tribunal members various police documents relating to the arrest of Alim.

Malum argued that he should be detained in custody. Mallum again read out from the report prepared by the investigation agency which stated that Alim was the chairman of the peace committee in Joypurhat, and in that position 'with the assistance of Razakars and Pakistani occupation forces Alim was involved in the killing of 10,000 people in Joypurhat during the 1971 War' and the murder of the local Awami League leader Dr Abul Kashem on July 26, 1971. (see previous (blog)

The same arguments made the previous day, in relation to seeking a warrant for Alim's arrest, were made.

Tajul Islam for the defence then stated that he would like to make an application for bail. He read out rule 34 of the ICT Rules of Procedure, which states:
(1) The Police shall produce the arrested accused direct before the Tribunal within 24 (twenty-four) hours of arrest excluding the time needed for the journey.
(2) When the accused is produced before the Tribunal under sub-rule (1), he shall be sent to the prison if he is not enlarged on bail by the Tribunal.(emphasis added).

Malum then stood up and said that the prosecution had only just obtained a copy of the bail application.

There was discussion between the Tribunal members and Tajul Islam whether or not it was necessary for the defence to actually file a bail application, and the Tribunal decided that he should just give his arguments as though there was no written bail application.

Islam said that the defence lawyers have still not seen the application, nor have they seen a copy of the investigation report.

He said that although the previous day's order had required that the copy of the investigation report should be given to the accused person along with the warrant of arrest, this had not been done.

The Tribunal told him that he would get a copy of the application, and gave some reason (not audible) why there might have been a delay.

Islam then said that since rule 34(2) says that the Tribunal can send an accused person to custody if he is not enlarged on bail, this means that the Tribunal can issue an order for bail.

He said that there was 'no substantive material' in the investigation report that justified the warrant of arrest to be issued.'

'Alim was a 81 year old man. He cannot walk. He has had a prostate operation twice. An eye operation twice. The doctor said that he cant walk due to arthritis.'

The Tribunal members then had a short discussion between them and said that the defence should file a fresh bail application and the Tribunal should sit again at 2pm. The Tribunal chair also said that the investigation report will be given in the interval.

However the Tribunal rejected the defence application to be given a copy of the actual 'application' for a warrant of arrest. The Tribunal said that the Investigation report itself would give information on the substantive submissions by the prosecution, and a copy of the application was not necessary

The defence argued that they should have a copy of the application since it is on the basis of that application that they are seeking bail.

The Tribunal asked under what provision in the Rules of Procedure is the defence relying on

The prosecution said that there was no provision in the rules to allow the defence a copy of the application.

The defence said that the 'Rules do not contain everything.' The Tribunal, however, kept to its position that the defence should not have a copy of the application.

Afternoon session
By the afternoon, the court had provided Alim a wheelchair.

Advocate Malum for the prosecution was the first to speak and said that they had only received a copy of the application at 1.45pm, and had not had a chance to read the documents. He prayed for more time to consider the application.

Advocate Tajul Islam for the defence made his submission for bail, reading out from his application. He said the following things:
- Alim was a member of parliament and also a cabinet minister (textiles) between 1978/79 and then then a minister of communication between 1979-82.
- that he suffers from arthritis and cant move without a wheelchair.
- his passport gives his date of birth as 01 Nov 1930 and he is 81 years of age.
- the prosecution filed an application on 27 March and the Tribunal issued a warrant of arrest.
- the police arrested him at 9pm from his residence in Joypurhat town and took him on a 7 hour journey.
- he is very sick and physically unable to walk and was brought up to the court by resting on the shoulders of the police.
- that rule 9 of the ICT rules of Procedure say that the Tribunal may issue a warrant for the arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation.
- that 'in the present case the prosecution miserably failed to produce any materials to show that the petitioner has been creating any obstacle in holding effective and proper investigation or tampering with the evidences in any way. That since the prosecution failed to substantiate the rerquirement of Rule 9 for issuance of warrant of arrest of the petitioner cannot be put under detention in connection with the case rather he may be enlarged on bail for securing end of justice'.
- that 'the investigating authority failed to produce a single piece of evidence regarding interference with the investigation by the petitioner rather they have mere made a statement that due to not arresting the petitioner many of the witnesses are scared but there is no specification when, how and to whom the petitioner made threats. That this statement has been made just to make an excuse to arret the petitioner according to their sweet wish.'
- that as there is no supporting evidence he cant be detained.
- that the 'report of the investigating agency is full of some vague and indefinite allegations made against the petitioner. That the gist of the allegation made against the petitioner is that he has passed Order upon the military officers to kill the people and freedom fighters but a man of general prudence can understand that the military forces act under their superior command not under the command of a civilian and as such the petitioner can no way be responsible for any activities committed by the military.'
- the accused never committed any offences alleged against him, 'rather he has saved lives of thousands of people of his locality during 9 months of the war of liberation'
- that he is an 81 years old man, with various diseases, including diabetes, prostate problems, eye problems. he has two operations on his prostate and two on his eyes, that the petitioner has been suffering Rumotology and he has been suffering from pain in Neck in both sholder and Nerve Pain in Lower limb and that he needs to pass urine after 30 minutes
- that 'in the above conditions the petitioner needs specialized treatment and close observations and nursing which is not possible in jail custody.'
- that 'the petitioner cannot even stand without help of others and cannot move without wheel chair and in such situation if the petitioner is not released on bail his life will be unbearable in the jail custody and considering this humanitarian aspects the petitioner may be enlarged on bail.'
- that he has been under house arrest for the last 1.5 years and 'and the police kept him under 24 hours observations in his house for the last one and half year and in such situation it is not humanly possible to abscond or to tamper with the evidence and process of investigation in any manner'.
- that the 'petitioner participated in the historic language movement and was sent to jail hajat and he is in no way involved with the alleged criminal activities committed in the year 1971 rather as a popular public leader he has saved lives of thousand of peoples including freedom fighters and the members of the Hindu community. That the people of the locality remember this event with due respect till today. That the allegation of killing of ten thousand people in Joypurhat by the petitioner is a cock and bull story which will prove false in investigation in future.'
- that he is ready to hand over this passport and given any secruity necessary, and report to the police weekly and can be directed to stay in a specified residence.
- that internationally a significant number of people has been given bail who were in pre-trial detention, and taking this into consideration he should be enlarged on bail.

He then discussed various provisions of statutes relating to other International Tribunals which allowed bail. He read out Article 58 of the Rome State of the International Criminal Court. This states:

'At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:
(a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial;
(ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or
(iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.'

He said that the bail conditions proposed by the accused satisfy all these requirements, so detention is not necesasry. In relation to (i) the petitioner is always ready to appear before the tribunal at any date. In relation to (ii) he said that the prosecution has 'miserably failed to substantiate allegations' that investigation is being obstructed. In relation to (iii), he said there is no question that the accused could repeat the offences alleged.

He said that he should not be detained unless there was 'substantive evidence of interference'

He referred to Rule 9 of the ICT rules of Procedure that says that the Tribunal be 'satisfied' that 'arrest is necessary for effective and proper investigation'. He said, 'you have seen the condition of the accused. How can this person abscond.'

'Considering his age, health, physical condition, that he will surrender his passport, that he will confine himself to his residence, that any amount of surety will be given.

'It is 40 years since 1971. He could have absconded in that time. It is impossible for him now to tamper with evidence, to interfere with investigation.'

'He is ready to face trial. If he is taken into custody, what would be the benefit?'

'In relation to Article 58 of the ICC statute, I will appear, I will not obstruct, there is no possibility of repeating the same crime.'

At this point, Islam finished, and the Tribunal had a conversation with Islam about needing more information from him, in relation to page numbers in his petition referring to his medical records and also where his client would reside in Dhaka if he was given bail.'

Prosecutor Malum then brought to the attention of the court an article from the Daily Newspaper Kalor Konto - but it was not clear what this article was about (this will be clarified, and this blog updated)

The Tribunal then passed the following order:

'Accused Alim has been presented in this Tribunal in compliance with order passed yesterday. He is present in the dock.

Mr Zia Malum, learned prosecutor appearing in this Tribunal submitted that prosecutor had made out a case of an order in favour of detention of the accused in custody. On the other hand Mr Tajul Islam, learned counsel appearing for the accused person, by filing a petition for bail submitted that that this is a case where no order shall be passed directing the detention of the accused because he is an old man, above 80 years of age, he is a patient, he cannot walk and needs use of a wheelchair. No case has been made again under section 3(2) of the Act and he is ready to agree to all provisions imposed by the Tribunal in this respect.

Upon perusal of the application for bail, we find some mistakes in the the petition.

Mr Tajul Islam prayed for permission to correct the mistakes. The learned prosecutor also submitted that he had only just read a copy of application for bail and needed some time for consideration and will file a petition opposing bail.

We have heard both sides and are of the view that both sides have substance.

The hearing of the bail petition application will be adjourned under 31 March.

In meantime, the accused Mr Abdul Alim will be returned to Dhaka Central Jail and the the jail authority is directed to look after his health conditions and provide him medical treatment on the advice of the doctors as and when requested.

After the hearing I spoke to the accused's eldest son on the phone. He said that the allegations against his father was 'baseless'. '

'It was not possible to kill 10,000 people as Joypurhat which only had 30,000 people. It is a personal vendetta against him by some people.'

I attended the prosecutors media briefing and asked the Chief Prosecutor, why he was not satisfied with the conditions that the accused promised to abide by. He said 'Conditional bail is illegal.' When I asked him to clarify whether he meant that in Bangladesh it was not lawful for the courts to impose conditional bail, he said, 'It is not done.'

Two prosecution applications were dealt with at this hearing. First an application for the arrest of Abdul Alim, a former BNP minister, and secondly an application to question Motiur Rahman Nizami, the ameer of the Jamaat-e-islami who is already in detention.

Application for arrest of Abdul Alim
Advocate Haider, on behalf of the prosecution argued that the Tribunal should issue a warrant of arrest from Alim. He read out from a report, prepared by the investigation agency. The main points that were stated in court are below:

The accused M A Alim is involved in the commission of all kinds of crimes against humanity during the period of the Liberation War. It is primarily found from the witnesses and evidences recovered in the investigation that accused Alim, being a leader of Muslim League in the region of Joypurhat under the district of Bogra, gave his active support in the commission of all kinds of activities and crimes, getting involved in the anti-liberation activities; giving his assistance to the collaborators of the invader army during the nine month tenure of the Liberation War.

It is also found during the investigation that, the accused joined in politics of the Muslim League in 1958. He was given the responsibility of divisional secretary of the organization in 1962. In 1964, he became chairman of the district council of grater Bogra region.

The accused being a local leader of The Muslim League, and taking his position against the Liberation War of Bangladesh, was appointed chairman of the Peace Committee (Shanti Committee); and with the help of the invading army, building a Peace Committee and a Rajakar Division, he committed various crimes involving killing, looting, raping, burning and destroying of houses, shops, banks etc.

Evidence shows that during the nine-month long Liberation War, the Peace Committee, and the Rajakar Division, under the leadership of Alim, brutally killed tens of thousands of peace-loving, unarmed, freedom-loving people of all ages under the direct or indirect supervision of the invading army in the border area of Joypurhaat. On 24 July 1971, the invading army, with the help of local Rajakars took Doctor Abul Kashem from his own residence and kept him in detention, and tortured him. When Abul Kashem was taken to the Peace Committee’s office, which was situated in the drawing room of Saonlal Bazla, an inhabitant of the locality, the members of the pakistan army detained and tortured him under the direction of Alim. Finally, killing him, they threw away the corpse in the sugar cane field on 26 July 1971.

The Pakistan-army captured another two persons along with freedom fighter Fazlu and took them to M A Aleem’s residence at C O office colony. Then Alim announced a death sentence on the three detained persons in presence of the villagers. He gave direction to kill the followers of ‘Joy Bangla’ (Bangabandhu). Later, those three so-called accused persons were killed, after keeping them detained to Alim’s house, in the slaughter house of Khnjanpur.

It is also found in the investigation that, Alim, founded a Rajakar recruitment camp in his own residence and maintained the responsibility of recruitment. It was under his direction that the Rajakars and the Pak-army, surrounding the Hindu inhabited area of Karaikadipur village, heinously killing about 165 innocent Hindus in the later part of April in 1971. After looting the houses, they burnt them.

In the later part of 1971, the Pakistan army took some 26 coachmen from the road to the residence of M A Aleem, where they were detained for some days, and the Pakistan army killed them in the slaughterhouse of Khanjanpur under the direction of Alim.

Besides, during the Liberation War the Rajakars and the Pakistan army conducted great violence against women; and it is proved that Abdul Alim publicly said that, “There is nothing wrong in violence against women by the army during a war”.

Abdul Aleem along with his supporters captured about 26 freedom fighters from the village of Mangalbari, blindfolded them and tied their hands behind the back and took them on a truck displaying them around the town; and Alim calling them the followers of India, ordered them to be killed in open daylight. And evidence shows that after killing some of them, they threw them in the well of Akkelpur Madrassa and killed the rest in Khanjanpur slaughterhouse, they threw away the dead bodies.

A picture of the destitute freedom fighters with tied up hands in front of a smiling Abdul Aleem as the chairman of the Peace Committee of Joypurhaat with Major Afzal of the Pakistan Army, the leader of the operation for the detention and killing of the freedom fighters, has been recovered during the investigation. Through it, it is proved that Alim was an active collaborator with the Pakistann army with all kinds of crimes committed against humanity.

In addition, evidence shows that, the accused M A Aleem, conducted propaganda with Major Afzal openly in various remote areas of Joypurhaat in various times saying that the Hindus are the enemy of the Muslims and declating the freedom fighter as miscreant fduring the Liberation War.

Evidence has been found against the defendant Alim Father-Late Abdul Wahed, Mother-Late Latifunnessa, Village-Joypurhaat Sadar Rasta, Police station and District Joypurhaat during the investigation of thee most barbarous genocide, destruction and crimes against humanity under section 3(2) of the International Crimes (Tribunal) Act, 1973.

Haider Ali for the prosecution, said 'This is fact. It has been uncovered in investigation, and we have the materials to prove it.'

He pointed to rule 9(1) of the ICT Rules of Procedure which allow the Tribunal to issue a warrant of arrest if is 'is necessary for effective and proper investigation'.

He argued that further investigation was not possible unless Alim was detained, as witness were already being intimidated.

Reading from his application, he said: 'There is more evidence against him which is being collected. As the defendant has so far not been arrested, many of the witnesses are scared. Defendant MA Aleem is a very influential, dangerous and mightily powerful person. At this stage, in order to ensure a fair and effective investigation, it is vital to arrest the defendant Abdul Aleem. It is also necessary to interrogate him after arrest.'

There was discussion between the Tribunal and Haider about Alim's age, and Haider said he was 80 or 81 year of age.

No lawyer for the defence was allowed by the Tribunal to make any representation on behalf of Alim. After a minute or two the Tribunal chair read out the following order:

'This is an application filed by the prosecution praying for the issuance of a warrant of arrest for the accused MA Alim, son of Md. Abdul Wahed of village Joypur, Shadar Road, under Joypurhat under rule 9(1) of the ICT rules of procedure 2010.

The court heard from the learned prosecution Syed Haider Ali and perused the application and the the report of the investigation submitted to the prosecution by the investigation agency.

In the application some facts have been brought alleging involvement of the accused in the commission of offences involving section 3(2) of the International Crimes Tribunal Act 1973. The learned prosecutor further submitted that they have got sufficient evidence against the accused.

It was further submitted that witnesses are now facing difficulties in giving their statements to the investigation authority and also are now terrorised thinking of further repercussion to them after becoming a witness in the case, and for that reason wants the issuance of a warrant of arrest for effective and proper investigation.

In the application, the age of the accused was stated as 80 years old. We have given our anxious consideration regarding submission of learned prosecutor and the age of the accused person.

Upon consideration of all the factors we are of the view that at this stage a warrant may be issued for the production of the accused.

In rules 34(1) of the ICT Rules of Procedure it have been clearly stated that police shall produce the arrested accused directly before this tribunal within 24 hours of arrest excepting the time needed for the journey.

Upon consideration of all the facts and rules we are directing the Inspector General of Police to arrest the accused person Mr Alim and the police are directed to comply with rule 34(1), and produce the accused before the Tribunal accordingly. On that date the Tribunal will issue further order.'

At this point, apparently the end of the order, Advocate Tajul Islam, for the defence got up and said that for the last year and a half, Alim has been under house arrest, and that he cant move and that arresting him in these circumstances would be 'degrading punishment for him'.

The Tribunal then added to its order the following:

'The authorities are directed to look after the health of the accused person when bringing him before the tribunal.

May a copy of the report submitted by the Investigation Agency be served along with the warrant to the accused person.'

Application for questioning of Nizami
Syed Rezaur Rahman, for the prosecution, got up and started to make an application seeking the custody of Motiur Rahman Nizami, who has been in detention since August 2010, so that he could be questioned.

However, very soon into the application, the Tribunal members asked a number of questions: 'Where will he be taken. Where can he stay? These things must be known by the Tribunal You have to place him in a good condition.'

The advocate then sought time to give a supplementary application.

The Tribunal passed an order adjourning the hearing until 5 April 2011.

I was not present at this hearing. From talking to those present in court and press reports, this is what I understood happened.

Sayedee was produced before the Tribunal. The Prosecution then submitted six volumes of case diary and investigation material - said to total about 3000 pages - to the tribunal. This was done subsequent to a previous order of the tribunal (see blog) the tribunal then adjourned the hearings to look at the papers.

During this adjournment period, the lawyers for Sayedee make the following claims: that Mr. Sayedee was taken back from the dock. His son wanted to give him some dry food (sandwich, biscuit, apple & water) as Mr. Sayedee was a diabetic patient and needed to take food which he was unable to do so during the long journey from jail. The police did not allow this, and so the lawyers sought the Registrar’s permission. The registrar checked with the Chairman of the tribunal over phone and it appeared to the Jamaat lawyers that the chairman was not willing
to allow the food to be given but asked the lawyers to file a written application for the food. the lawyers wrote a short application.

After about an hour's adjournment, the tribunal resumed its proceedings and the defence lawyers filed an application for food. The tribunal allowed the application but directed the police to only allow the accused to take food after the court has concluded.

Advocate Haider Ali, for the prosecution, pressed its application to extend the time of the detention order of Sayedee until its investigation was complete.

Ali said that it was not possible to investigate the matter within a short period of time due to the large range of crimes against humanity committed during the Liberation War.

"We need more time to examine the photos, videos, newspaper clippings, books and other information," he said.

He added that more time were also necessary to locate witnesses who have changed their residential addresses.

“Sayedee's involvement in the 1971 crimes was initially proved. He helped the Pakistani soldiers and torch several villages during the independence war. If he is set free, he can influence the investigation against him. He should be kept in detention for the interest of justice,” Ali is reported to have said.

The defence then pressed its bail application with Tajul Islam reading out the bail application.
- Petitioner has been detained in custody since his arrest on 29 June 2010. This has been over eight and half months.
- ‘There are no reasonable grounds for believing that the Accused-Petitioner has committed the offence with which he is charged’. He has ‘still not been formally charged of any crimes’.
- That by an order dated 29 December 2010, the tribunal directed the Investigation Authority to complete its investigation of the case by 15 February 2011 and submit a report to the Tribunal. However, on that date, the Investigation Authority filed the same investigation report submitted earlier on 14 December 2010 and prayed for further time to conclude the investigation and also for a direction to extend the detention order until the investigation is concluded. There was no progress of investigation in this period which was why on 20 February 2011 the Tribunal directed the Investigation Authority to submit its case diary before the Tribunal to show the progress of investigation.
- The ‘Investigation Authority has failed to exercise due diligence in investigating this case and even after nearly nine months, the Prosecution has failed to establish a prima facie case against the Accused-Petitioner. Without a formal charge, there can be no reasonable grounds to believe the Accused-Petitioner committed crimes under the Act and should be detained without bail.’
- the Investigation Authority has alleged that the accused should be detained in jail custody for the following reasons: He may abscond;he may interfere with the witnesses and use his ‘armed cadre force’ to interfere with witnesses; the witnesses are in fear of their security as a result of threats made by the ‘armed cadre force. The witnesses have filed six General Diaries in Pirojpur Sadar and Zianagar (Indurkani) Police Stations; he may interfere with the investigation process through his ‘armed cadre force’ in Pirojpur; he may destroy evidence relevant to the case; there is a possibility of an increase in terrorism in Bangladesh that may destabilize the country
- the accused will not abscond because he is seventy-one years of age and of ill health. He has been a diabetic patient for the past thirty-five years as well as suffering serious heart problems and chronic arthritis in his neck, upper limbs, waist and knees. ‘He is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from Tribunal. He is also willing to comply with a residential condition to reside at his address at 914, Shahidbag, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is he is willing to report to the local police authorities on an agreed regular basis. ‘
- He ‘is unlikely to continue or repeat commission of offences if enlarged on bail’. He is an internationally reputed Islamic scholar. He has given religious teachings for 50 (fifty) years. The people of Pirojpur have twice elected him as Member of Parliament in 1996 and 2001. He has no previous convictions. Due to his age and ill-health is highly unlikely to commit any crime.
- There is no risk of an increase in terrorism in Bangladesh should the Accused-Petitioner be granted bail. He has publicly criticized acts of terrorism in his religious preachings.
- The accused is unlikely to tamper with witnesses or evidence. There is no evidence that the accused has any connection to an ‘armed cadre force’ and as a result no threats have been made to any witnesses. With respect to the six General Diaries filed at police stations, it is submitted that in General Diary No. 1239/10 dated 26 August 2010, the Pirojpur Sadar police station submitted a report on 21 September 2010 before the learned Senior Judicial Magistrate in Pirojpur. The police report stated that there was no evidence concerning the allegation of threats made and as a result the arrested individual was released on 23 September 2010. With regard to the remaining five general diaries, though they were filed 7 to 10 months ago, the police have not submitted reports. Also, the accused is willing ‘to undertake that he will not travel to any crime-base areas without prior permission from the Hon’ble Tribunal. He is also willing to undertake not to contact any Prosecution witnesses or to interfere with the investigation process.’
- The Accused-Petitioner has been in custody for a long period and trial is not likely to conclude within a reasonable time. Since being detained on 29 June 2010, the accused has not been served with any specific allegation of crimes committed under the Act. It is unforeseeable that the Prosecuting Authority will bring charges against the Accused-Petitioner in the near future. It is therefore respectfully submitted that there are no lawful grounds to continue or extend the detention of the Accused-Petitioner.
- There is an international obligation to grant the right of bail to the Accused-Petitioner. Article 9 (1) of the International Covenant on Civil and Political Rights (“ICCPR”) states that “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law (emphasis added).”; that Article 9 (2) ICCPR states that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons of his arrest and shall be promptly informed of charges against him (emphasis added);” tat under Article 9 (4) ICCPR: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement (emphasis added).” Article 60 (4) ICC: “The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions (emphasis added).”
- The accused has been subject to arbitrary detention. He has been detained with out being promptly informed of any formal charge in breach of Article 9 (2) ICCPR and Article 60 (1) ICC. This continued detention without charge is a product of delay on behalf of the Prosecution as stipulated in Article 60 (4) ICC.
- The Accused-Petitioner should be granted bail to seek urgent medical attention. The accused is an elderly man who suffers from a number of health problems. He has been a diabetic patient for the past thirty five years. He requires regular medical assessments to ensure that his blood sugar level is kept under control. Since being detained on 29 June 2010, the penal authorities have consistently failed to test his blood sugar levels and have failed to provide adequate medical treatment. As a result the Accused-Petitioner’s blood sugar levels have risen to such an extent that his diabetes is no longer under control. This has led to the exacerbation of existing health complaints in his prostate gland, eyes, foot and other parts of his body. These are all common complaints for a diabetic patient.
- The accused suffers from serious heart disease. He has two rings in two arteries of his heart and blockage to the extent of 75% and 85% in two other arteries of his heart. He has complained of serious pain in his heart and requires immediate medical attention. On 14 January 2011 the Dhaka Central Jail authority had to call a cardiologist from PG Hospital to attend to the accused. The examining cardiologist advised that he should undertake a number of medical assessments/examinations.
- The accused suffers from chronic arthritis and experiences pain in his neck, upper limbs, waist and knees. Prior to his incarceration on 29 June 2010, he used to undergo regular physiotherapy treatment. However since his physiotherapy has been stopped whilst in custody, the level of pain has increased substantially.
- The accused has been transferred five times to four different jails over the course of seventeen days. On 20 January 2011 the Accused-Petitioner was transferred from Dhaka Central Jail to Munshigonj Jail. On 30 January 2011 the Accused was taken on a four-hour journey after midnight and transferred to Gazipur District Jail. On 5 February 2011 the Accused-Petitioner was taken from Gazipur District Jail and transferred to Dhaka Central Jail. The following afternoon on 6 February 2011 he was transferred to Kashimpur Jail. At 20:00 the same day he was again transferred to Gazipur District Jail.
- The accused has yet to receive any medical assessment or treatment with regards to his heart problems or diabetes at any of the jails in spite of the medical advice given on 14 January 2011. The frequent transfer from one jail to another has considerably aggravated his existing medical health complaints.
- The accused is willing to comply with the following conditions for bail: surrenders his passport before the competent authorities; does not apply for any travel documents without the prior permission from the Hon’ble Tribunal; resides at 914, Shahidbag, Dhaka - 1217; reports to an agreed local police station on an agreed regular basis; does not travel to any crime-base areas without prior permission from the Hon’ble Tribunal; does not contact any of the Prosecution witnesses; does not interfere with any part of the investigation process.
- In addtion Mr. A. K. M. Mustafizur Rahman, Son of Late Moulvi Khalilur Rahman of 180/6/11 East Rampura, Dhaka – 1219, who is a family friend of the Accused is willing to provide surety of an agreed amount as a condition for bail.

The Prosecution strongly opposed the bail application and emphasised that if he was released the accused may influence the investigation process as he is an influential person and a renowned politician.

At one point according to media reports, the ribunal chairman Mohammad Nizamul Haque said that enough time had already been spent, and it seemed the prosecution panel was ''asleep". Haider Ali countered that they were not asleep, but working.

Following further submissions by Tajul Islam and by Haider Ali, the Tribunal chairman give his ruling:

That the accused is present in the dock, in accordance with the order passed by this tribunal. The prosecution has submitted six volumes of the case diary. We adjourned for one hour to look into the investigation materials and the case diary in our chamber.

On behalf of the Prosecution, Mr. Haidar Ali, submitted that their investigation is continuing and they need further time to complete the investigation. It appears from the investigation materials and the case diary that it will be completed within a short time and the prosecution may be able to file formal charges. Haider Ali further submitted that if the accused is enlarged on bail he will tamper with the evidence. He also submitted that some more time is required for investigation and submission of the formal charge and in the mean time the accused may be kept in detention.

The defense lawyer Mr. Tajul Islam has submitted that the prosecution has taken sufficient time for investigation. He filed a bail application to enlarge the accused petitioner on bail. He submitted that the Accused Petitioner is ready to comply with certain conditions for bail. He referred certain provisions of ICCPR & ICC in support of his bail application. He also submitted that the accused is an old man, a patient of diabetic and heart disease and arthritis and need to take medicine on regular basis. So he should be enlarged on bail.

It appears that the investigation is in final stage and the prosecution may file a charge sheet shortly. So some more time may be given to complete the investigation. But we are of view that that the accused requires full medical treatment. But if the accused is enlarged on bail the Investigation Authority may face some difficulty as the accused is an influential person. So we reject the bail application. We also direct the jail authority to arrange for necessary medical test and treatment of the Accused Petitioner. If required the jail authority have to arrange test in Bangabandhu Medical College Hospital (PG Hospital).

That the prosecution is directed to complete investigation within shortest possible time preferably within one month. If fails to complete the investigation then they have to submit progress report along with case diary. The court is adjourned till 20th April 2011 for further order. Prison authority is directed to produce the accused on that day.

Following the order, the prosecution lawyers said that they then tried to file an application for medical assessment in a private hospital in Dhaka. The Chairman replied that there is no need to file the application as he has already directed the jail authority to provide all necessary medical treatment to the accused.

The prosecution lawyers also said that they made an oral request to the tribunal to transfer Mr. Sayedee to Dhaka Central Jail as all his cases are pending in Dhaka (he has a number of cases other than those dealing with war crimes) and the long journeys to attend the courts make him suffer. The tribunal said that it does not have the power to give such a direction and advised the lawyers to make necessary application before proper authority.

On 15 February, as directed by the Tribunal (see blog), the investigation agency (through the prosecution) submitted its report concerning its investigation into alleged offences committed by Sayedee.

At the last hearing on 29 December, the prosecution was ordered 'to complete its investigation within 15 Feb 2011 and submit report. In case that failure to submit formal charges, then Tribunal will sit on 14 Feb and pass necessary orders considering an application for bail by accused.'

After portions of the submitted investigation report was read out in court, the Tribunal chair asked the prosecution, 'After gap of some time, there must be developments in the investigation. Show me the developments'

The prosecutor, Haider Ali read out a section of the investigation report.

The Tribunal then asked why there were no reports in relation to any of the General Diaries that had been mentioned in an earlier hearing by the prosecution suggesting that witnesses had been threatened.

The prosecution said that this was not part of their investigation.

The Tribunal chair said that 'We are trying to find out whether there has been any developments in the investigation or not.'

The prosecutor then said that 'We have collected some more papers and documentation.

The Tribunal chair then referred to Rule 8(1) of the Rules of Procedure and asked whether it was being complied with by the investigation agency. The Rule states that: 'The Investigation Officer shall maintain a Case Diary for each case in connection with the investigation mentioning its day to day progress until completion of such investigation.'

The Tribunal chairman said that the investigation reports have barely changed, and just lines at the end of the reports were changed. 'You have not submitted a formal charge. You just write this line and substitute it in the new petition. There must be a time for the investigation to end. This man has been in pre-trial custody for a long time.'

The Tribunal chairman then said to the prosecution. 'Six long months have passed away. You have to satisy us that there is a fair case. There is though no new evidence. Why does the investigation agency not produce evidence so that we can be satisfied. What is really going on. How far has the case developed.'

The prosecutor then said, 'The investigation agency is investigating the case'

Tajul Islam, for the defence, then got up and said, he was in a very peculiar situation as he had not been given a copy of the application filed by the prosecution. 'We don't know what they are praying for' he said. 'Not know reasons they they are giving' But they are praying for time, for reasons I don't know. the copy of the application must be given to us.'

The tribunal then said, that the application should be given to the defence.

Tajul Islam then made the following points:
- there has been no development in the investigation;
- earlier the prosecution had alleged that six General Diaries (GD) have been filed against Sayedee. But they have not given a copy of these. I can also report that nothing has been filed by the police in relation to these allegations.
- there is a procedure in other tribunals for accused to be given bail at the pre-trial stage, and clear that should not be detained for indefinite period
- the allegations against Sayedee are absolutely false
- after a case has been filed against Sayedee, he traveled to Saudia Arabia and came back. He never fled and has no intention of fleeing
- prosecution says it needs more and more time. Yes, they need more time to investigation, 1971 was 40 years ago, but should Sayedee remain in detention in this period.
- Sayedee will obey any conditions the Tribunal wants to impose for bail.
- willing to stay in Dhaka
- he is more than 70 years old, and is a sick man

The Tribunal Chairman then read out the following order:

The accused Sayedee has been presented in the Tribunal today by the authorities. He is present in the dock. The prosecution has submitted a report stating the progress of the investigation. In the report they have stated they could not complete the investigation which is going on and are perusing records which have been made available to them and were collected and as such they pray for further time to continue investigation and also to effect proper and effective investigation they have prayed for further extension of time. I have perused the report and let it be kept on record.

Mr S Haider Ali, learned prosecutor appeared for the prosecution, submitted that the investigation agency has collected many materials which supports the involvement of the accused in commission of the offences. The materials are being preserved. He submitted that to effect proper investigation detention of the accused be extended.

Mr Tajul Islam, the learned counsel appearing for the accused submitted that prosecution has not come with any materials to support detention of accused or any materials as to why formal charge is not being submitted although required by Tribunal to do so, and he has not been charged.

Tajul Islam further submitted that foreign laws relating to war crimes tribunals also support that in pre-trial stage a person shouldn't be detained for indefinite period and should be entitled to seek bail. Lastly, he submitted that accused is sick and is a senior politician and on this should be entitled to bail.

Mr Tajul Islam in support of his submission has not come with any application or any material about illness of accused.

However, upon hearing the learned prosecutor and accused we are of the view that case diary should be produced before us by Investigation Agency for our appraisal of the development of the investigation.

As such we direct the Investigation Agency to produce the case diary to the Tribunal on 15 March and this matter is adjourned until then. In the meantime the accused may take any step he is so advised.

The prison authorities are directed to produce Sayeed as per the directions.

Comment
It seems that the reason for an adjournment was to allow the investigation agency to produce the case diary for the Tribunal members to have a look. It remains unclear why it was necessary for the Tribunal to allow a month to pass to allow this to happen.

(please note that some further details will be added to this blog in the next week about the allegations against Sayedee contained in the investigation report, parts of which were read out in the Tribunal hearing.)

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.